Monday, June 10, 2013

NLRB judge strikes down Red Cross employee confidentiality policy

A couple of months ago, I suggested that there was hope for a friendship between the NLRB and me, following the Board’s pronouncement that most at-will employment disclaimers would not violate the NLRA’s protected concerted activity laws. I reached this conclusion because of the Board’s statement concerning reading employment policies “in context” to determine whether potentially violative phrases in employment policies can conceivably be read to restrict Section 7 activity.

If the Board is supposed to read employment policies “in context,” then can you please explain the recent ruling by an NLRB Administrative Law Judge in American Red Cross Blood Services, Western Lake Erie Region (6/5/13) [pdf]?

In American Red Cross, the ALJ examined the following confidentiality policy:

I acknowledge that I may, in the course of my employment with Red Cross (“Employment”), have access to or create (alone or with others) confidential and/or proprietary information and intellectual property that is of value to Red Cross. I understand that this makes my position one of trust and confidence. I understand Red Cross’ need to limit disclosure and use of confidential and/or proprietary information and intellectual property…. Therefore, I agree to the following:

Confidential information shall include but not be limited to: … information relating to Red Cross’ … personnel … matters.

The ALJ held that this policy violates Section 8(a)(1) of the NLRA by reasonably chilling employees in the exercise of their section 7 rights:

By defining confidential information as including information regarding “personnel” and “employees” the [policy] would be reasonably understood by employees to prohibit the disclosure of information including wages and terms of conditions of employment to other employees or to nonemployees, such as union representatives. It is, of course, clearly established that employees have a Section 7 right to discuss wages and  terms and conditions of employment among themselves and with individuals outside of their employer.… 

The specific employee handbook provision that prohibits the release of confidential employee information without authorization is clearly facially overbroad, … in that such a rule would reasonably be understood by employees to prohibit the disclosure of information regarding wages and terms and conditions of employment to other employees or to union representatives.

I do not agree that employees would reasonably understand that a policy that covers “personnel” matters would prohibit employees from discussing matters of compensations and wages. Indeed, there were no allegations in the case that the Red Cross acted against any employee under this policy. Instead, the ALJ was reviewing the policy in the abstract.

The ALJ also rejected the employer’s argument that a “savings clause” in its handbook rendered an otherwise unlawful policy lawful:

“[T]his Agreement does not deny any rights provided under the National Labor Relations Act to engage in concerted activity, including but not limited to collective bargaining.” As the Charging Party correctly noted in its brief, under Board law, such a disclaimer does not make lawful the content of a provision that unlawfully prohibits Section 7 activity.… The “savings clause” noted above arguably would cancel the unlawfully broad language, but only if employees are knowledgeable enough to know that the Act permits employees to discuss terms and conditions of employment with each other and individuals outside of their employer.

I have two takeaways for employers from this decision.

  1. The NLRB continues to scrutinize facially neutral employment policies for violations of employees section 7 rights to engage in protected concerted activity, even in cases in which there is no allegation of any adverse action against any employee under an alleged unlawful policy.
  2. Savings clauses and disclaimers might save a policy that the NLRB views as overly broad, but likely only if specifically drafted. Board and non-specific savings clauses will not save the day. Instead, employers should draft savings clauses such that employees can reasonably understand their specific rights that are protected.